MO court: parents must be informed of right to counsel

10/06/2015, Litigation, Abuse/Neglect/Dependency - Accused Parents

in K.G. v. K.G., 472 S.W.3d 230, 234 (Mo. Ct. App. 2015), the Court of Appeals from the Western District Division One found error where, under § 211.211(4), “no inquiry was made regarding whether Father had or desired counsel.  Likewise, there is no indication that the Commissioner sought to determine whether Father was indigent or whether a full and fair hearing required appointment of counsel for Father ... This Court has [] found that ‘it is the court’s obligation to inform a custodian of his right to representation, not the custodian's obligation to initiate an inquiry into his right to counsel.’”  The court also rejected the Juvenile Officer’s argument that a 2010 amendment to the court rule corresponding to § 211.211(4),, which changed the language from “the parent … desires appointment of counsel” to “the parent … requests appointment of counsel”, placed an affirmative obligation solely on the parent.  Instead, the court reasoned, the rule change was

 

meant to clarify that the custodian, upon being informed of the right to appointment of counsel, as required by the holding in In re N.H., 41 S.W.3d 607, 613 (Mo. App. W.D. 2001), has an affirmative duty at that point to notify the court, either verbally or in writing, that the custodian wants counsel appointed. It was meant to adjust the nature of a finding required for the appointment of counsel and not meant to eliminate the court's responsibility to inquire into whether the appointment of counsel was required.

 

The court observed that the summons received by father made no mention of his right to request appointed counsel.  The court also pointed to Rule 124.06(b), which states, “[a]t . . . an adjudication hearing, the court shall first determine whether . . . (3) the parents, guardian or custodian of the juvenile are entitled to appointed counsel."  Thus, the court held, “in order to determine if a parent is entitled to counsel, as Rule 124.06(b) requires at any adjudication hearing, the court must inquire of the custodian regarding indigence and the desire for counsel and must evaluate the necessity of counsel for a full and fair hearing.”